Kurzman Karelsen & Frank, L. L. P., New York City, and Gardner & Sosinsky, New York City, for plaintiff.

OPINION

Orazio R. Bellantoni, J.

Defendants County of Westchester, Joseph Stancari, Officer

Page 748

Savino, and Sergeant Rushin move for an order: (1) pursuant to CPLR 3212, granting summary judgment in favor of the County of Westchester dismissing the complaint and all claims asserted under 42 U.S.C. § 1983 on the ground that the County did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process rights; (2) pursuant to CPLR 3212, granting summary judgment in favor of defendant Joseph Stancari dismissing the complaint and all claims asserted under 42 U.S.C. § 1983 on the ground that plaintiff failed to prove any personal involvement on the part of Joseph Stancari; (3) pursuant to CPLR 3212, granting summary judgment in favor of defendant Officer Savino dismissing the complaint and all claims asserted under 42 U.S.C. § 1983 on the ground that Officer Savino did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process rights; and (4) pursuant to CPLR 3212, granting summary judgment in favor of defendant Sergeant Rushin dismissing the complaint and all claims asserted under 42 U.S.C. § 1983 on the ground that Sergeant Rushin did not violate Ivan Figeroa, Jr.'s Fourteenth Amendment due process rights.

Plaintiff cross-moves for an order: (1) deeming the plaintiff's notice of claim alleging state law causes of action for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., which was served on the County of Westchester on August 7, 1998, as having been filed timely, nunc pro tunc, pursuant to General Municipal Law § 50-e (5), and (2) granting the plaintiff leave, pursuant to CPLR 3025 (b), to file and serve an amended verified complaint alleging state law claims of negligence as against the defendant, County of Westchester, for conscious pain and suffering and wrongful death of the decedent, Ivan Figeroa, Jr., and alleging more specific facts pertaining to the claims brought pursuant to 42 U.S.C. § 1983.

It is hereby ordered that: (1) defendants County of Westchester, Joseph Stancari, Officer Savino, and Sergeant Rushin's motion for summary judgment dismissing the complaint against them is granted; (2) plaintiff's cross motion is granted to the extent that the portion of plaintiff's notice of claim served on August 7, 1998 which alleges wrongful death is deemed to have been filed timely; and (3) plaintiff is granted leave, pursuant to CPLR 3025 (b), to file and serve within 30 days after entry of the instant order an amended verified complaint alleging a claim against defendant County of Westchester for wrongful death and alleging " that at least thirty days have elapsed since the service of such notice [of claim] and that adjustment

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or payment thereof has been neglected or refused." (General Municipal Law § 50-i [1].)

The instant action arises out of the suicide death of a 17-year-old male, decedent Ivan Figeroa, Jr., while he was a pretrial detainee at the Westchester County Jail in Valhalla, New York. Plaintiff asserts claims, pursuant to 42 U.S.C. § 1983, that defendants violated Ivan Figeroa, Jr.'s Fourteenth Amendment constitutional rights. Therefore, " [i]n this case it is [Ivan Figeroa, Jr.]'s due process rights with which we are concerned. He was a pretrial detainee, not found guilty of a crime, and therefore he could not be 'punished.' For that reason, his treatment in the detention facility is analyzed under the Due Process Clause, rather than the Eighth Amendment's prohibition against cruel and unusual punishments. " (Frake v City of Chicago, 210 F.3d 779, 781 [7th Cir 2000], citing Bell v Wolfish, 441 U.S. 520 [1979].) " But like the protection afforded a convicted prisoner under the Eighth Amendment, a detainee is protected [under the Fourteenth Amendment] from the 'deliberate indifference' of officials. (County of Sacramento v. Lewis, 523 U.S . 833 ... (1998); Antonelli v. Sheahan,81 F.3d 1422 (7th Cir. 1996). Specifically, when the claim is based on a jail suicide ... the protection a detainee receives is the same as that received by an inmate claiming inadequate medical attention under the Eighth Amendment. " (Frake v City of Chicago, 210 F.3d 779, 781-782 [7th Cir 2000], citing Mathis v Fairman,120 F.3d 88 [7th Cir 1997]; Payne v Churchich,161 F.3d 1030 [7th Cir 1998], cert denied 527 U.S. 1004 [1999].) It is well settled that " [p]rison inmates have [a] ... right to be confined under conditions that provide 'adequate food, clothing, shelter, and medical care.' " (Estate of Novack v County of Wood, 226 F.3d 525, 529 [7th Cir 2000], citing Farmer v Brennan,511 U.S. 825 [1994], quoting Hudson v Palmer, 468 U.S. 517 [1984].) " In addition, prison officials are responsible for taking reasonable steps to guarantee the safety of the inmates in their charge ... To make out a claim for a violation of an inmate's ... right to adequate conditions of confinement, a plaintiff must make two showings: 'First, the danger to the inmate must be objectively serious, posing a substantial risk of serious harm. Second, the prison official must have a sufficiently culpable state of mind--one of " deliberate indifference" to inmate health or safety.' " (Estate of Novack v County of Wood,226 F.3d 525, 529, quoting Haley v Gross,86 F.3d 630, 640-641 [7th Cir 1996], and citing Farmer v Brennan,511 U.S. 825, 834 [1994].)

" 'Deliberate indifference,' as it is used in the [Fourteenth] Amendment context, comprehends ...

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